2. QAILS PII Webinar ASCR: Legal ethics essentials ___ Stafford Shepherd Senior Ethics Solicitor 30 May 2013

3. Overview Brief background History of the Australian Solicitors Conduct Rules (ASCR) What are the fundamental duties of a solicitor? A focus on select rules

4. Sir Gerard Brennan AC on ethics – Address to Queensland Bar Association 3 May 1992 “cannot be reduced to rules” “hallmark of a profession” “not so much learnt as lived” “If ethics were reduced merely to rules, a spiritless compliance would soon be replaced by skilful evasion.”

5. Fundamental duties of solicitors

6. CASE STUDY 1

7. Case study 1 You were employed by the Brisbane City Legal Assistance Centre between 1999 and 2005. In January 2000 you represented Bowden Cable on a charge of breaking and entering a home with intent to commit an indictable offence. Bowden entered a plea of guilty and was sentenced to 6 months jail. In September 2004 you represented Bowden again. Bowden was charged with the possession of a small amount of cannabis. Bowden pleaded guilty and was fined on this occasion. In November 2011 you accepted a position with the Office of the Director of Public Prosecution.

8. In February 2012 Bowden was charged with an offence pursuant to section 352 of unlawfully and indecently assaulting another person. It has been over 8 years since you last saw Bowden. You have no information in relation to Bowden’s current charge other than the brief provided to you. You probably met Bowden on 6 occasions in the past. You have been requested to undertake Bowden’s prosecution. What issues should you reflect upon?

9. Rule 10 Conflicts concerning former clients

10. Rule 9 Confidentiality

11. Case study 1: discussion Source of duty – the engagement, equity and for solicitors rule 9.1 ASCR Duty of confidentiality is absolute subject to discretionary exceptions in rule 9.2 ASCR Involves more than taking all reasonable steps to keep information confidential or not communicating it to a third party: Prince Jefri Bolkiah v KPMG (1999) 1 WLR 215 at 225 (Lord Millett)

12. Confidentiality involves keeping client’s affairs secret and not disclosing them to anyone without just cause: Parry-Jones v Law Society [1969] 1 Ch at 6-7 per Lord Denning MR Embraces all communications made by client about his/her affairs & all information learnt directly/indirectly about client, in the course of the professional relationship: Unoil International Pty Ltd v Deloitte Touche Tohmatsu (a firm) (1998) 17 WAR 97 at 108 per Ipp J

13. “Getting to know you” information Yunghanns v Elfic Pty Ltd (Unreported, Supreme Court of Victoria, Gillard J, 13 July 1998) Magro v Magro (1989) FLC 92-005 R v Lindskog (1997) 117 CCC (3d) 551 ‘Can impressions be confidential information?’ Ethics Centre, 13 March 2013 http://ethics.qls.com.au/content/materials/can-impressions-be- confidential-information.html http://ethics.qls.com.au/content/materials/can-impressions-be- confidential-information.html

14. CASE STUDY 2

15. Case study 2 John and Margaret are the parents of a four year old girl. They are involved in a protracted and acrimonious dispute in the Federal Circuit Court of Australia. John has been represented by Wendy, a solicitor in the employ of the Brisbane City Legal Assistance Centre. John has a temper that is easily triggered. In a recent telephone conversation John has told Wendy that he is very unhappy with her representation. In that call, he says if it doesn’t improve he will come down and “rip her throat out”. The call was very abusive.

16. Wendy applies to the court to withdraw from representing John. In her affidavit Wendy recounts the abusive and threatening call. The affidavit has been served on Margaret’s solicitors. The application to come off the record is successful. Subsequently John applies for further contact with his daughter. Margaret wishes to use Wendy’s affidavit to support her allegation that John is a violent and abusive person.  Was Wendy justified in terminating the retainer?  Should Wendy have disclosed the details of the telephone call with John?  Can Margaret use the affidavit Wendy filed in John’s application?

17. Termination of retainer Rule 13.1 A solicitor…for a client’s matter must ensure completion of the legal services for the matter UNLESS… Rule 13.1.3 the law practice terminates the engagement for just cause and on reasonable notice ….

18. ‘just cause’ client’s acts inconsistent with continuing representation preventing performance of duties wholesale breakdown in confidence mutual trust and confidence between solicitor and client irretrievably broken down French v Carter Lemon LLP [2011] EWHC 3252 (QB) ‘reasonable notice’ Fact sensitive

19. Confidentiality We must be careful not to disclose information even if in the public domain: LSC v Tampoe [2009] LPT 14 Duty of confidentiality continues after the termination of the client engagement and the client’s death: Gartside v Sheffield, Young and Ellis [1983] NZLR 37 at 49 per Richardson J C v C (Privilege: Criminal Communications) [2001] EWCA 469.

20. CASE STUDY 3

21. Case study 3 Thursday Next is a claimant for damages for alleged assault and false imprisonment against Walter Black, a police sergeant at the time of the alleged murder. Between the date when the claim was lodged and the date of the hearing, Walter was demoted on being found guilty by QCAT of being a party to the deception of a court in another matter. You act for Walter. It is being proposed that Walter will appear in plain clothes and will not be asked about his rank. What issues need to be addressed by you?

22. Case study 3: relevant cases Re Thorn (1918) 18 SR (NSW) 70 at 73: need for care in the way you present facts although as presently directly it may not be untrue, when taken as part of a body of information it may mislead & conceal Meek v Fleming [1961] 2 QB 366 Forster v Legal Services Board [2013] VSCA 73

23. CASE STUDY 4

24. Case study 4 You represent a teacher, Rodger, in proceedings brought against him by the Queensland College of Teachers (QCT) in QCAT. The basis of the proceedings was alleged sexual misconduct by Rodger with the teenage daughter of a woman with whom Rodger had a personal relationship of some years. Rodger prepares a statutory declaration which has annexed to it a lengthy submission entitled ‘Response to QCT Allegations’. Rodger instructs you to send a letter addressed to the complainant at her place of employment enclosing a copy of the Rodger’s statutory declaration and the attached submissions.

25. Your letter states that you act on behalf of Rodger and you say that pursuant to his express instructions you enclose the statutory declaration and you say it has also been sent to the QCT. The annexed documents contain risqué descriptions of Rodger and the complainant’s sexual encounters. The submission also contains a request that a copy of the document be made available to the mother and that she withdraw her complain to the QCT. The submission also states that if the complaint was not withdrawn and if he was required to appear in QCAT he intended to provide a copy of the document to ‘key people’ including local school principals.  What are the matters that should have been considered before the letter was sent?

26. Compare Solicitors Rule 2007, rule 28.5 (repealed) A solicitor must not, in connection with the practice of law, in any communication with another person…make any statement that is abusive, offensive or insulting or which is unbecoming of a solicitor. ASCR, rule 34.1.3 A solicitor must not in any action or communication associated with representing a client … use any tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person.

27. Case study 4: discussion Legal Services Commissioner v Orchard [2012] QCAT 583 Rule 28.1 ASCR A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice.

28. CASE STUDY 5

29. Case study 5 You act for Always Ready Corporation (ARC). ARC is the manufacturer and distributor of an extension ladder. Thursday Next (Thursday) claims to have fallen from the ladder and was injured. The ladder was been set up for her by Spike Stoker (Spike). Thursday sues ARC for damages for personal injury. ARC joins Spike as a third party on the basis that the ladder was set up in an over-extended position.

30. The matter is being heard in the Magistrates Court. On arrival at the Court, you observe Thursday and Spike in discussion. You feel that Thursday and Spike are acting suspiciously.  In cross-examination of Thursday, it is permissible for you to convey that Thursday and Spike were planning to fraudulently implicate your client as being solely responsible for the accident?  What do you need to have regard to if you intend to plead an allegation of fraud, serious misconduct or criminality?

31. Case study 5: relevant rules Rule 21.3 – proper basis to allege on reasonable grounds Rule 21.1 – invocation of court power Rule 22.2 – allegation made under privilege Rule 34.1 – dealings with other persons

32. Case study 5: relevant cases Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244 Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411 Clyne v NSW Bar Association (1960) 104 CLR 186

34. Contact Details QLS Ethics Centre p 3842 5843 ethics@qls.com.au >> ethics.qls.com.au Stafford Shepherd s.shepherd@qls.com.au p 3842 5967